Summary
dismissing inmate's claim that rejection and return of packages by mail room staff at prison facility violated his right to free speech under Article First, § 5 of the Connecticut Constitution because claim did not relate to the passage of a law restraining freedom of speech and observing that violation of his right to free speech derived from Article First, § 4 of the Connecticut Constitution
Summary of this case from Woolard v. SantiagoOpinion
CV155035513
02-20-2018
Brian NIBLACK v. Warden BRIGHTHAUPT et al.
UNPUBLISHED OPINION
OPINION
James W. Abrams, Judge
The self-represented plaintiff, Brian Niblack, filed a complaint with this court on May 4, 2015, alleging the following. In May of 2013, while the plaintiff was incarcerated at Cheshire Correctional Institution (CCI), two packages addressed to the plaintiff were rejected as undeliverable by one of CCI’s mail handlers, identified as Mail Handler Wislocki, and returned to the sender without notification to the plaintiff. The packages each contained twenty-two photographs and a note. On June 17, 2013, the packages were once again rejected, and the plaintiff received notice of the rejection. The same day, the plaintiff filed a request through CCI’s administrative remedy process to have the packages delivered to him. On July 2, 2013, Warden Brighthaupt approved the delivery of both packages to the plaintiff. Subsequently, Administrative Remedies Coordinator Crandall determined that the plaintiff would be allowed to receive one of the packages but not the second. The plaintiff filed a second request for administrative remedy on August 1, 2013, asking that Crandall’s determination be overruled and both packages be delivered to him. Rejecting the plaintiff’s second request, Brighthaupt incorrectly asserted that the matter had already been resolved by a previous process, apparently having in mind a separate administrative remedy request filed by the plaintiff on an unrelated matter. For these actions, the plaintiff requests relief under 42 U.S.C. § 1983, alleging conduct in contravention of his constitutional rights under the first amendment to the United States constitution and under article first, § 5, of the constitution of Connecticut.
This court is aware of the plaintiff’s self-represented status and takes the same into consideration. " Although [this court] will not entirely disregard our rules of practice, [it does] give great latitude to pro se litigants in order that justice may both be done and be seen to be done ... For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can [this court] disregard completely our rules of practice." (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007).
Inasmuch as the defendants in the complaint are not identified by first name, they will be identified in this memorandum by their job title and last name only.
Title 42 of the United States Code, § 1983, provides in relevant part: " Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ..."
The defendants filed a motion to dismiss the complaint on August 27, 2015. On September 8, 2015, the plaintiff filed a motion to extend his time to reply to the defendants’ motion to dismiss until December 3, 2015, which was granted. In light of the plaintiff’s motion to extend, the motion to dismiss was denied without prejudice on October 13, 2015. The plaintiff filed subsequent motions to extend, which were granted, and filed a reply to the defendants’ motion to dismiss on April 28, 2016. On February 18, 2016, the plaintiff filed a request to amend his complaint, which was withdrawn on September 21, 2016, and replaced by a new request to amend the complaint on September 22, 2016. The plaintiff filed an additional objection to the defendants’ motion to dismiss on November 11, 2016. The defendants filed a correction to their motion to dismiss on January 3, 2017, to account for a change in the case law. On May 1, 2017, and August 16, 2017, the plaintiff filed additional memoranda in objection to the defendants’ motion. Oral argument on the motion to dismiss was heard on October 30, 2017.
DISCUSSION
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
" Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court’s subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015). " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).
In support of their motion to dismiss, the defendants argue that sovereign immunity bars the present action against the defendants in their official capacities because the plaintiff has failed to allege a claim that his rights under the United States and Connecticut constitutions were violated. The defendants further argue that statutory immunity bars the action against the defendants in their individual capacities because the plaintiff has failed to allege a claim that the defendants acted outside the scope of their employment or that they acted wantonly, recklessly or maliciously. The defendants conclude, therefore, that the court lacks subject matter jurisdiction to hear the plaintiff’s complaint, which should be dismissed in its entirety.
The defendants also argue in their memorandum of law that the court lacks personal jurisdiction over them because of improper service. The defendants withdrew their personal jurisdiction challenge after the plaintiff filed a series of motions to compel the defendants to provide him with their home address so that they could be properly served. See Docket Entry No. 107. The defendants confirmed on the record during oral argument that their personal jurisdiction challenge had been withdrawn.
In his initial objection to the defendants’ motion, the plaintiff contends that his revised complaint alleges clear constitutional violations and that it alleges the defendants acted wantonly, recklessly or maliciously in censoring his mail. In subsequent objections, the plaintiff argues further that action was brought against the defendants in both their official and individual capacities, leaving avenues available for both injunctive relief in the former capacity and monetary relief in the latter. The plaintiff also contends that the complaint establishes sufficient grounds to find that the defendants’ actions were performed outside of the scope of their employment or, in the alternative, that their actions were reckless, wanton or malicious as toward the plaintiff’s rights.
The complaint in the present case does not specifically make the delineation between pursuing injunctive relief from the defendants in their official capacity and monetary relief from the defendants in their individual capacities. Reading the allegations of the complaint in the light most favorable to the plaintiff; Conboy v. State, supra, 292 Conn. 651; however, the complaint contains cognizable counts against the defendants in their official capacities, acting in violation of the plaintiff’s constitutional rights under both the United States and Connecticut Constitutions, and against the defendants in their individual capacities. Accordingly, the court will consider each of the defendants’ claims to immunity in turn.
I. Sovereign Immunity
" The doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). The Connecticut Supreme Court has " long recognized the validity of the common-law principle that the state cannot be sued without its consent ... We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).
Because § 1983 concerns federal law, our Supreme Court has held that " when sovereign immunity is claimed as a defense to a cause of action pursuant to § 1983, federal sovereign immunity jurisprudence preempts analysis under state law ... The elements of, and the defenses to, a federal cause of action are defined by federal law." (Citations omitted; internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 133-34, 913 A.2d 415 (2007). " It may be accepted as a point of departure unquestioned ... that neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of the original jurisdiction conferred on this court by the constitution." (Citation omitted; internal quotation marks omitted.) Hans v. Louisiana, 134 U.S. 1, 17, 10 S.Ct. 504, 33 L.Ed. 842 (1890). " The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle; it follows that the scope of the States’ immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design." Alden v. Maine, 527 U.S. 706, 728-29, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).
" [S]tate officials sued for money damages in their official capacities are not persons within the meaning of § 1983 because the action against them is one against the office and, thus, no different from an action against the state itself." (Emphasis added; internal quotation marks omitted.) Sullins v. Rodriguez, supra, 281 Conn. 141; see also Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding the same). " A state official sued in his official capacity for monetary damages is ... not subject to suit under § 1983." Braham v. Newbould, 160 Conn.App. 294, 308, 124 A.3d 977 (2015). The United States Supreme Court held in Hafer v. Melo, 502 U.S. 21, 23, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), however, that § 1983 does authorize actions against state officials for damages arising out of official acts if they are sued in their personal or individual capacities. " Personal-capacity suits ... seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, [o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official acting under color of state law, caused the deprivation of a federal right." (Emphasis altered; internal quotation marks omitted.) Id., 25.
The only remedy available to a plaintiff in an action against a state official in his official capacity is injunctive relief. " [A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the state." (Emphasis added; internal quotation marks omitted.) Will v. Michigan Dept. of State Police, supra, 491 U.S. 71 n.10. " [T]he phrase ‘acting in their official capacities’ is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Hafer v. Melo, supra, 502 U.S. 26.
A. The Plaintiff’s Claims Under the U.S. Constitution
We will consider first the defendants’ application of sovereign immunity to the plaintiff’s claim of a violation of the his constitutional rights under the first amendment of the United States Constitution. " In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." (Internal quotation marks omitted.) Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). Under the Ex parte Young doctrine, therefore, this court lacks jurisdiction over a claim if the plaintiff cannot show an ongoing violation of his constitutional rights.
The plaintiff alleges in the complaint that the defendants’ interference with his mail violated his first amendment rights. In general, " a prisoner’s right to the free flow of incoming and outgoing mail is protected by the First Amendment." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003), modified on other grounds. However, " an isolated instance of mail tampering is usually insufficient to establish a constitutional violation." Id. Where the alleged incidents of interference with prisoner mail are as few as two, a plaintiff may show a violation of his constitutional rights under one of two circumstances: " (1) if the incidents suggested an ongoing practice of censorship unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled the prisoner’s right of access to the courts or impaired the legal representation received." Id. In the present complaint, the alleged interference with the plaintiff’s mail concerned not access to the courts or to his legal representation, but personal correspondence. The plaintiff must show, therefore, a violation of his right to free flow of mail under the first circumstance, namely, an ongoing practice of censorship unjustified by a substantial government interest. There is no indication before the court that the plaintiff’s mail has been interfered with since the two incidents described in the complaint, which do not in themselves indicate an intentional or systematic attempt to control of the plaintiff’s free flow of information. The conduct described in the complaint is insufficient to suggest an ongoing practice of censorship against the plaintiff. The plaintiff has pleaded no other violation of his federal constitutional rights that could be considered ongoing. The court further notes that the plaintiff has been transferred to a different correctional institution, as established during oral argument, meaning that the defendants could not, in any event, be engaged in ongoing censorship of the plaintiff’s mail.
Without an ongoing violation of his constitutional rights, this court can provide no prospective relief for the injuries alleged by the plaintiff and, accordingly, lacks jurisdiction to hear his claims. Thus, the motion to dismiss is granted on the claims against the defendants in their official capacities as they relate to an alleged violation of the plaintiff’s rights under the first amendment to the constitution of the United States.
B. The Plaintiff’s Claims Under the Connecticut Constitution
Similar to his claim under the first amendment to the United States Constitution, the plaintiff also alleges a violation of article first, § 5, of the Constitution of Connecticut. As the defendants argue in their memorandum of law, the plaintiff’s citation to article first, § 5, of the Connecticut Constitution is erroneous, inasmuch as an individual’s right to the freedom of speech under the Connecticut Constitution derives from article first, § 4. " Section 5 ... literally applies only to the passage of laws restraining freedom of speech or press and does not by its terms afford protection provided by § 4 against restrictions the exercise of those rights which government officials may impose whether or not sanctioned by law." Cologne v. Westfarms Associates, 192 Conn. 48, 63, 469 A.2d 1201 (1984). Although the plaintiff does allege claims under article first, § 4 in his amended complaints, the court must resolve a challenge to subject matter jurisdiction before taking any other action; Schaghticoke Tribal Nation v. Harrison, supra, 264 Conn. 839 n.6; and the court cannot consider the plaintiff’s amended complaints at this stage of the proceedings. Thus, the motion to dismiss is granted on the claims against the defendants in their official capacities as they relate to an alleged violation of the plaintiff’s rights under the Connecticut Constitution.
Article first, § 5, of the Connecticut Constitution provides: " No law shall ever be passed to curtail or restrain the liberty of speech or of the press."
Article first, § 4, of the Connecticut Constitution provides: " Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
Even were the court empowered to entertain the plaintiff’s amended complaints, however, there would be no change in the outcome of the present motion. While the plaintiff’s amended complaints add much in detail and precision to his claims through lucid legal writing, the alleged misconduct described therein does not rise to the standards required by Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009), which allows a plaintiff to overcome the bar of statutory immunity if he can demonstrate " a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights" or " a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority." The evidence before the court is insufficient to demonstrate a " substantial" violation of the plaintiff’s rights, or that the defendants acted outside of their statutory authority in reviewing and managing the plaintiff’s mail. " In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." Id., 350.
II. Statutory Immunity
In the complaint, the plaintiff also seeks relief from the defendants in their individual capacities in the form of monetary damages, which remedy is allowed under federal law. Hafer v. Melo, supra, 502 U.S. 23. The defendants argue that statutory immunity should apply in the present case, the plaintiff’s claims being barred General Statutes § 4-165. The plaintiff’s complaint fails to meet the requirements of § 4-165 to show either that the defendants’ alleged actions were " wanton, reckless or malicious," or that they were outside the scope of the defendants’ employment.
General Statutes § 4-165 provides in relevant part: " (a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter ..." ---------
Our Supreme Court has analyzed the scope of employment in such a way as to allow allegations that a state officer’s " misuse of his authority was personal to him and was not primarily employer rooted or reasonably incidental to the performance of employment duties," that the officer’s conduct was " motivated by purely personal considerations entirely extraneous to his employer’s interest," or that state officers acted " solely ... to justify their own prior unjustified conduct, and not to carry out the government policy with which they were entrusted." Martin v. Brady, 261 Conn. 372, 378, 802 A.2d 814 (2002). Even taken in the light most favorable to the plaintiff, it is difficult to discern a personal interest for the defendants in the conduct alleged in the complaint. Given the low stakes involved, the plaintiff has failed to show how the defendants’ alleged misconduct could be motivated by a personal misuse of authority or by personal considerations, or that it might have been pursued solely to justify prior misconduct. The allegations as described in the present case do not rise to the level described in Martin v. Brady .
In the alternative, the plaintiff may demonstrate that the defendants’ conduct was " wanton, reckless or malicious." Our Supreme Court has observed in Martin v. Brady, supra, 261 Conn. 379, that " [w]e have never definitively determined the meaning of wanton, reckless or malicious as used in § 4-165. In the common-law context, however, we have stated: In order to establish that the defendants’ conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts ... [Such conduct] is more than negligence, more than gross negligence ... [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.)
Reading the complaint in the present case in the light most favorable to the plaintiff, the misconduct alleged does not indicate reckless disregard for the plaintiff’s safety or constitutional rights. At most, the plaintiff describes an unfounded decision to hold back one envelope of personal mail and a grievance process executed with inadequate attention or care. The exceptions made available in § 4-165 were designed to address much more serious misconduct. In the present case, it is impossible to discern anything resembling a reckless disregard of the plaintiff’s rights or safety, or an extreme departure from ordinary care in a highly dangerous situation. Thus, statutory immunity applies to the allegations against the defendants in their individual capacities.
CONCLUSION
In light of the foregoing, the motion to dismiss is granted in its entirety.